Free Radical

Historical revisionism happens quickly these days. But the media rehabilitation of your public persona might seem pretty slow if you were forced to spend the last five years in prison, including two years without a trial. Still, Kevin Mitnick, the poster boy for public paranoia about homegrown cyberterrorism, might be pleased to find that he has been newly appraised. Finally released from prison in California, Mitnick has not only achieved martyrdom among hacker supporters in the "Free Kevin Mitnick" movement, he has recently been elevated in the mainstream press to the status of . . . well, not that bad of a guy.

Mitnick's media mythology goes back to his teen years, when he is said to have hacked into the NORAD (North American Air Defense Command) computer. Mitnick denies this. What a shame. It may seem bad form now, but for many in the pre-'90s generations, hacking the military juggernaut was a romantic fantasy, an act of radical anti-authoritarianism and an image redolent of that ultimate teen hacker movie, 1983's WarGames.

While at least three books filled with biographic facts and conjecture fill out the Mitnick mythos, the probably true history of Mitnick is composed of police and court reports. The guy has been busted time and again for messing around with computers and telephones.

The history starts in 1981, when Mitnick is among a group of young phone phreakers nailed for stealing computer manuals from Pacific Bell. He is put on probation for a year. In 1983, he is alleged to have used computers at the University of Southern California to access the military's ARPAnet. He gets six months' jail time. In 1987, he's collared for penetrating the computers of a software publisher and receives three years' probation. In 1988, he is charged with illegally copying proprietary software from Digital Equipment Corp. He gets a year in jail, eight months of it spent in solitary confinement.

Prison authorities are beginning to treat him as a sort of Hannibal Lecter of cyberspace. They seem to believe that if he were allowed within spitting distance of a telephone, he could destroy civilization as we know itand he wouldn't even need a dime.

After serving that term, he is forced to spend six months in a halfway house for his "computer addiction." This peculiar form of justice has sufficient amusement value to spread across the media wires. In 1992, Mitnick apparently violates his probation by hiding out after the FBI searches his home computers, believing he has been breaking into telephone company computers. He is soon thereafter accused of stealing software from a variety of corporations, including Motorola and Sun. Finally, in 1995, he is tracked down by Tsutomu Shimomura and arrested in Raleigh, North Carolina. He remains in prison until 2000, with much of the time again spent in solitary.

The spy-versus-spy game between the notorious "criminal hacker" and the well-connected national security insider Shimomura provides the basics for three major books and a still unreleased film. At the time of his arrest, Mitnick's public image is that of an obsessive villain. Soon after, hackers protest against Miramax's portrayal of Mitnick.

But the portrayal of Mitnick as a terrorist dates back to at least January 8, 1989, when the Los Angeles Times published an article about him titled "Computer An Umbilical Cord to His Soul: Dark Side Hacker Seen as Electronic Terrorist." As Jonathan Littman wrote in 1996's The Fugitive Game: Online With Kevin Mitnick, "Over time, newspapers codified the legend . . .unchecked allegations of Mitnick's incredible feats were treated as fact . . . the dark side hacker, enemy of the government and the public, a hacker too dangerous to be allowed near a computer or phone . . . fat, ugly, uneducated, and a slave to junk food."

The media, motivated more by the love of the sensational than by any desire to conspire with law enforcement, had found its first hacker terrorist, and was not about to let the icon fade. But as surely as Mitnick's real-life exploits provided grist for the sensation mill, the public image has had real-life consequences for Mitnick.

Mitnick still blames John Markoff and his dramatic ongoing New York Times reportage for what many now see as the law enforcement and criminal justice system's obsession with and punitive over-reaction to Mitnick's case. In March of 1999, he complained to reporters, "This would have been over years ago." Markoff "single-handedly created the myth of Kevin Mitnick, which everyone is using to advance their own agendas."

It may not have been single-handed, but many people credit Markoff's July 4, 1994 New York Times article as having shamed the FBI into making Mitnick's capture a priority. The articlewhich opens, "Combining technical wizardry with the ages-old guile of a grifter, Kevin Mitnick is a computer programmer run amok. And law-enforcement officials cannot seem to catch up with him"revealed Mitnick's success in not only eluding the FBI, but taunting them and tapping their phones. The agency's private irritation became a public embarrassment.

When Mitnick was captured, he served 22 months for the probation violation. He was then refused bail by Judge Mariana R. Pfaelzer of the Federal District Court in Los Angeles, and spent another two years in prison awaiting his trial. His abuse at the hands of the criminal justice system was nothing short of extraordinary. Judge Pfaelzer informed Kevin's attorney, "I'm not going to give your client bail," prior to holding the hearing on the subject. He was forced to waive his rights to a bail hearing under the threat of continued solitary confinement. Reasonable requests of discovery were denied. And, of course, for a long time he was denied use of a telephone, the judge believing that, with a phone and a whistle, Mitnick could set off a nuclear attack.

By 1996, the heavy-handed actions of the criminal justice system finally gave rise to the "Free Kevin Mitnick" movement, turning this not particularly popular denizen of the computer underground into a martyr and a hero.

The question needs to be asked: Given Mitnick's long criminal rap sheet, was the portrayal of him as a psychopathic cyberterrorist justified? Apparently, the media no longer thinks so. Almost as if they were celebrating his upcoming release, the media suddenly started reconsidering Mitnick in 1999. An influential May 1999 Wired News article challenged the claim made by various software companies like Nokia and Sun Microsystems that Mitnick's theft of their proprietary software cost them $300 million. Aside from revealing that none of the companies had reported the losses to the IRS or to shareholders, the article raised what should have been the obvious point all along. Kevin Mitnick hadn't stolen software from these companies, in the sense that if this author stole your copy of the Voice, you'd no longer have it. He merely "accessed" proprietary information. He downloaded it. The companies still had their copies. As one cyber-lawyer has famously argued, "The victim companies haven't been deprived of its use or its value."

Mitnick didn't steal the software to sell it to the company's competitors either. He was merely guilty of hacker original sinscuriosity and showing off. On April 19, 1999, that paragon of conservative business sense, Forbes magazine, issued strong words rehabilitating Mitnick's reputation. In the opinion piece, titled "The Demonizing of a Hacker," Forbes tech reporter Adam L. Penenberg wrote, "Is Mitnick a cyberterrorist? Will throwing the book at him make our databases safer? The answer to these questions is no. Mitnick's crimes were curiously innocuous. He broke into corporate computers, but no evidence indicates that he destroyed data. Or sold anything he copied. . . . The sum and substance of his criminal career was not like a string of bank robberies. It was more like a string of arrests for throwing cream pies in the mayor's face."

The freshly released Mitnick was just given reasonably sympathetic treatment by 60 Minutes, and reportedly will be writing a piece for Time. And although he is apparently attempting to live with the terms of his parolehe's not supposed to use a computer for three years, something that pretty much requires someone to live in a cave at this pointhe's been treated as a homecoming hero by the computer underground. And now that the dramatic books have been written, the movie has gone into postproduction, and all the fury about Mitnick is dying down, supplanted by new hysteria over the recent crimes against e-commerce, what was it he actually did? He read some people's e-mail and he downloaded some proprietary software. And how sensational is that?

R.U. Sirius was the founder and editor inchief of Mondo 2000 from 1989-1993. He is currently Chairman of the Revolution at the-revolution.org.